Sunday, January 13, 2008

"CONSTITUTIONALISM AND SOCIAL JUSTICE: WHY THE RULE OF LAW MATTERS TO THE LIVES OF ORDINARY PEOPLE" with Qazi Faes Isa

•Isn't a constitution supposed to enforce our fundamental rights?•Why does it seem to be silent on violations instead?•What does the constitution have to say on communal and public property? On labour? On the environment? On sovereignty?•Does it make any difference whether a constitution exists or not?•How can we get the constitution to protect us?•Can it keep being changed at will?•What's wrong with it that it has to be changed?•What is a constitution anyway?

These and other questions will be answered and discussed at an Info and Q&A session with Qazi Faez Isa, Barrister-at-Law and Advocate, Supreme Court of Pakistan.

Organised by The Green Economics & Globalization Initiative, SHIRKAT GAH in collaboration with the PEOPLE'S RESISTANCE.

WASHINGTON (Daily Times): A Canadian newspaper report claims that Ishtiaq Hussain Shah, the deputy superintendent of police who was alongside former prime minister Benazir Bhutto’s vehicle when she died, has been gagged with no one allowed to visit him in the Rawalpindi hospitial where he is recovering from the injuries he suffered in the December 27 blast.

According to the Globe and Mail, there was no security cordon around Benazir as she left Liaquat Bagh in Rawalpindi where she was killed. The doctors at the hospital, who on the night of her death said she died of bullet wounds to the head and neck, mysteriously changed their story the next day.

Security arrangements: The report states, “To many in Pakistan, it all smacks of state complicity in the assassination. To others, it points, at the very least, to a concerted attempt to hide the extent of the security failure.” The PPP leader’s “own private security arrangements seemed poor and chaotic. Armoured cars are not typically fitted with sunroofs – Ms Bhutto’s vehicle was reportedly modified against all safety advice. After her death, her husband made the startling revelation that she was guarded by men he had met in prison. ‘Both the state and the internal security of the Pakistan People’s Party failed miserably,’ according to Masood Sharif Khattak, a retired former head of the Intelligence Bureau, Pakistan’s top civilian intelligence agency. ‘But state responsibility (for security) stands first and foremost.’ According to that suppressed report on the assassination, the authenticity of which could not be verified, a pistol made by the Chinese company Norinco was recovered from the scene, with lot No 311-90. An MUV-2 triggering mechanism for the bomb was also found, similar to the ones used in 15 previous suicide bombings, and with the same lot number and factory code.”

Another report in the Seattle Times notes, “The first report is from Ishtiaq Hussain Shah of the Rawalpindi police, who witnessed the assassination and said that as Benazir’s car headed onto Rawalpindi’s Liaquat Road after an election rally on December 27, a crowd appeared from nowhere and stopped the motorcade, shouting slogans of her Pakistan People’s Party and waving party banners. Benazir, apparently thinking she was greeting her supporters, emerged through the sunroof of the bullet-proof car to wave. ‘I don’t know who they were or from where they came … They just appeared on the road.’ But 10 feet from where he was standing, a man in the crowd wearing a jacket and sunglasses raised his arm and shot at the former prime minister. ‘I jumped to overpower him,’ Shah said later. ‘A mighty explosion took place soon afterwards.’ Shah, recuperating from injuries suffered in the attack, is in a Rawalpindi military hospital, guarded by agents of Pakistan’s Inter-Services Intelligence directorate.”

KARACHI (Daily Times): Justice (retd) Rana Bhagwandas of the Supreme Court of Pakistan, who had refused to take oath under PCO-2007, has again been put under house arrest, this time hours after he addressed members of the Karachi Bar Association (KBA). The action came soon after he returned home. Talking to Daily Times on the phone, the pusine judge he said that a police officer, SP Asif Aijaz Shaikh, had come to his residence along with other police officers and delivered verbal orders for his house arrest. The police officer told that he had received these orders from his high-ups but failed to furnish any reason. Bhagwandas himself had the impression that this was the government’s reaction to his meetings, speeches and talks to lawyers and the media. “They (the government) had must dislike [them],” he said.

The KBA’s Naeem Qureshi said that the house arrest was aimed at throttling dissent. According to sources, the orders of detention were served by a senior police official upon the ex-judge as he planned to address a number of bar associations. Justice Bhagwandas was working to rejuvenate the struggle for an independent judiciary which is why he was considered a threat, said a Sindh Bar Council member. Chief Justice of Pakistan (retd) Justice Iftikhar Muhammad Chaudhry has been under detention since Nov 3.

We are publishing an interview with Munir Malik, the former president of the Supreme Court Bar Association who was imprisoned and given drugs under the pretext of painkillers which caused him renal failure and liver damage, but who continues to be an inspiration for the movement for the independence of the judiciary and the rule of law in Pakistan. His insights into the recent events will be helpful in understanding the movement of lawyers as well as the movement of democracy that is taking place in Pakistan now. This interview was conducted by Baber Ayaz on behalf of Asian Human Rights Commission. The Asian Human Rights Commission authorizes the faithful reproduction of this interview with due acknowledgements.Munir Malik's interview by Baber AyazUnprecedented movement of the legal fraternity for the independence of judiciary in Pakistan is still a cherished but elusive goal. On 20th July 2007, its victory was celebrated by all democratic forces in the country. But the gains of the movement were short-lived. On 3rd November 2007 President General Pervez Musharraf clamped Emergency on the country and chucked out all the independent judges. The struggle started again and it's a long way to go.In this back ground I went to interview Munir Malik, the man who launched the incredible movement in March 2007, in his capacity as President of Supreme Court Bar Association (SCBA). When I went to interview Munir, he was still wearing the hospital uniform and looked frail. Munir had fallen seriously ill during his detention at Attock Jail, where he was mal-treated by the government doctor. He was only shifted to Islamabad hospital when his kidneys collapsed and he developed a liver problem.For a few weeks that followed civil society feared that the man who valiantly led a movement that became an example even for the lawyers of developed democracies, may not be able to survive due to serious negligence of his health. But the fighter Munir fought and came back.Following are the excerpts of his interview: Baber Ayaz (BA): When you got elected to the Supreme Court Bar at that point the chief justice (CJ) reference issue was not there, you must be having some agenda for your tenure. What was that?Munir Malik (MM): Well I had contested the election precisely because I thought that this would be a defining year. There were a number of issues that were likely to come up in this defining year, for instance: Elections were supposed to be held; the issue that whether an army general can be elected as a president or can he hold two offices of the president and army chief at the same time, was to be decided; then there was the issue of the holding of dual nationality by members of parliament and cabinet ministers and whether they could swear allegiance to two constitutions. There was the issue of madaris' degrees (Degrees from fundamentalist Islamic seminaries) whether they were at par with college graduates, regular college graduates. By that time Malik Qayyum (the sitting Attorney General) and Sharifuddin Pirzada (legal advisor to the president) had established their credentials as supporters of the establishment. They were very close to Chief Justice Iftikhar. There was a feeling that the Supreme Court (SC) is trying to improve its moral image or its public image by taking Suo Motto (taking cases on the court's own initiative) notices of popular issues including especially the steel mills case where a decision was given against the government. It was feared that with this image the Supreme Court will give decisions favouring the government on crucial petitions like that related to the President's election and prices of pharmaceutical products.So I was certain that we need an independent bar to keep a watch on the SC itself. I was certain in my mind that it would be a defining year. The very first step was that SCBA passed a resolution demanding the restoration of the constitution as it was before Musharraf's take over in 1999.At that time, by and large the Chief Justice of Pakistan (CJP) was very unpopular in the rank and file of the legal fraternity for the principle reason that he was very arrogant and the perception was that he dispenses justice in cases according to the face value of the counsel who appeared before him. If it was Sharifuddin Pirzada he was sugar and honey, and if the counsel was not an important figure he would be otherwise. I think he was over-zealous in clearing the back log even at the cost of miscarriage of justice. Lawyers from Karachi, Quetta, Peshawar and Lahore were given notice in the evening that your case is fixed in Islamabad tomorrow. This roster problem was agitating the lawyers. So I was ready to raise this issue with him as I think justice hurried is justice buried.BA: But you had condemned the letter written by Naeem Bokhari before the reference was moved. Why?MM: When Naeem Bokhari's letter appeared in mid-February It was applauded in the bar rooms. I took notice of this issue (despite the fact that other lawyers supported it). Yes, my view was that he should not weaken the judiciary by making these allegations in the press.But I was still trying to get my pound of flesh, I wanted to have the CJP fix the roster problems which was troubling lawyers, and I would come out vocally in support of him. So he sent me a message through an intermediary that he was embattled and he wants me to issue a statement of support. I gave that statement, it was front page news in Dawn. Publication of this statement on the front page was surprising for me; I assumed it must have got a push from somewhere.In one of his speeches in February he had said that Munir Malik has promised to give me his unconditional support. When my turn came to speak I said so long as this court moves in the direction of the independence of the judiciary.Then came the bolt of 9th March, fortunately I was in Islamabad, it was a Friday. I was contacted by the press, at about 5:30 pm or so, they asked my views. The television had broadcast pictures of CJ meeting at the Army House, where sitting in military uniform the President asked the CJP to resign. I was very clear in my stand that this is a direct assault on the third organ of the state and we shall resist it.BA: The President has a constitutional right to send a reference against a judge of the superior court. Was your reaction more because of the indecent manner in which it was done or was it because the reference was sent in the first place?MM: Three grounds, first, the manner in which he was summoned and detained, at the army camp office. The message it sent was that the judiciary is really not an independent organ of the state and a uniformed President can do what he pleases. And by implication the legal fraternity was also helpless. Second reason was that Pervez Musharraf could not constitutionally make a judge dysfunctional. An executive order was issued, by the 'royal secretary' at 5:03pm saying that the CJ had been suspended and acting CJ was sworn in. This was a complete negation of the principle of separation of powers. Every judge would have felt insecure; all you had to do was send a reference. While it would have subsequently determined whether the reference was of substance or not, the harm to a judge's reputation would have been done. The third reason was that the Supreme Judicial Council (SJC) was convened the same day with unholy haste. One of the judges was flown in via special plane. The other was tipped off in Lahore. And without hearing the CJ, the SJC imposed a restrain upon him.BA: So if the President had followed the constitutional course you would have had no objection?MM: He should have sent the reference to the SJC to handle, whenever they would take it. Then the manner in which CJP was held incommunicado, together with members of his family. His entire domestic staffs was replaced by ISI (military intelligence agency) agents, they were in his living room, in his lawn, 20-25 people. His cars were fork lifted, no visitors were permitted, only those whom the security gave clearance to come in, I think Asghar Khan was the first to be permitted.BA: There was a tremendous response to the call of the SCBA when you launched the movement for the restoration of CJP. Were you certain that the people would come out like that or was it also a pleasant surprise?MM: There was a wave of indignation in the manner of his dismissal and everybody I talked to from the legal fraternity said that though CJ was not a nice man but what has been done with him was not right. I only channelised this wave of indignation, it was boiling, the Supreme Court Bar just coordinated it and I think that the master strategy that everybody gathered around the SC building on every date the CJP was produced, worked. The administration over-reacted, they sealed all roads leading to the SC, and I had to walk 2km before I could get into the SC building.CJP was supposed to be produced at 1:30 p.m. on 13th March, at 1p.m. images came on TV showing him being dragged by his hair. This agitated the lawyers who were practising in Islamabad and Rawalpindi and other adjoining courts and they started converging on the SC. I had given a call for the sit in at the SJC but I was not sure where it would meet because it was supposed to be in camera.BA: So one of the reasons perhaps that your movement got such a big response was the contribution of the media?MM: Absolutely, this was the difference between 2000 and 2007. In 2000 when 6 judges of the SC resigned, they were also detained in their houses and prevented from coming to the SC building. But at that time the print media had not given much importance to this and there was no independent electronic media. I don't think the CJ would have been re-instated without the media support.I think one of the other factors was that, even though pre-9th March the chief was only paying lip-service to the cases of the missing persons, but those missing persons would continue to picket at the SC daily. But these issue attracted civil society.BA: In the second Benazir Bhutto and Nawaz Sharif stint the judiciary was humiliated by both, but there was no massive movement against that. Why this time?MM: Well, historically the judiciary has always been a collaborator, with the ruling elite. It has been the 'B' team of the army. It retains the old, imperial mindset that they are there to serve the government. If the president would call a judge of the high court he would probably take out his best suit, take a camera with him and it would be an event for him to remember, that he has been summoned by the president or the prime minister. In Bhutto's white paper that had been published after 1977 I think Zulfiqar Ali Bhutto in one of his side notes remarked, 'they will come to you for petty favours' like a plot, for a diplomatic passport, an admission for a child, a posting for a relative. So they were only part of the establishment, they had no moral credibility. If a man in uniform said something that was the law. You could sense that if there was a case involving the corp. commander or cantonment land, the judge would think that before the corp. commander says something to me I should oblige him. So I think both the legal fraternity and the civil society felt why (they had to) support them.This time the media brought to our drawing rooms a man saying 'No' to the establishment. So the image that came out was that this man has stood up to fight generals, and say that I will not resign I'm innocent.BA: You had earlier said that there was a whole scheme of building up the image of the CJ and the SC and then getting the most crucial cases like the presidential election through; this means that the CJ was co-operating. Why did the establishment then decide to remove him?MM: I think the CJ was co-operating with the President but not with the government. The conspiracy against the CJ as he tells me was drawn out by Prime Minister Shaukat Aziz, General Javed Hamid, the then Chief Justice of Lahore High Court Iftikhar Hussain and his brother who was the Cabinet Minister and the Law Secretary Mansoor. The CJ had stopped his appointment to the Commonwealth. The CJ was not on speaking terms with Justice Hussain. Shaukat Aziz was really cut up on the judgement quashing the Steel Mills' privatisation. Then the CJP would humiliate civilian officers. CJP never summoned the sitting general but if he summoned the IG police or a secretary, he would take his gripe to Shaukat Aziz. Pervez Musharraf says that they had good family relations, so this reference came from the civilian element of the establishment. Pervez Musharraf was also given the impression that this man is going to be CJ till 2013 and he's already started showing his colours. I think Musharraf was misled. What was Shaukat Aziz doing in the army camp office; he was there on 9th of March. He was there before the CJ had arrived; special planes had started since the morning.BA: After 20th July, when the SC was restored, you said that the next struggle is to bring independence to lower judiciary and remove corruption. But then the slogan of removing the president was given. Now one view is that, it was an ambitious call without consolidating the gains, the judiciary and the legal fraternity became a bit adventurous and ended up with 9th November situation. Loves' labour was lost. What are your views on this view?MM: Yes, I was very conscious of that, as a matter of fact I'm on record for having stated if you burden the SC with political cases, it will collapse under its own weight. Now, the problem was that the politicians always wanted to fire from the shoulder of the SC, they wouldn't take the battle to the streets of Pakistan. The CJ cannot dismiss petitions without hearing them. There were Qazi Hussain Ahmed and Imran Khan's petitions before the SC challenging the holding of the dual office by the President.BA: Is it correct that they had scared Musharraf that he would give a judgement against him?MM: You will notice that neither the SCBA nor the Pakistan Bar Council (PBC) intervened in these proceedings. We had held out, an olive branch, by saying that the CJ was not a vindictive man, he will not sit on benches hearing cases against Pervez Musharraf and that counsels who were his counsels would never appear before him. But there was one issue, in which we had taken a stand in virtually every public meeting that was the case of missing persons. Now the CJP was under pressure to hear these cases. In the aftermath of the movement of 9th March 2007 he had said that it is the responsibility of the state to account for every missing person. It was not so much that we went after Pervez Musharraf, but we went to look for the missing persons, that antagonized Washington DC because they thought that courts would now be throwing a spanner on the war on terror. Then all the signals that came from the CJP that is the way he constituted benches on these constitutional cases was that he would go slow. The 6-3 verdict that came against Qazi Hussain and Imran Khan Case was certain to go this way. One could have looked at the bench and said that it would be 6-3 split decision in favour of Musharraf. In Justice Wajihuddin case against presidential election, we would have lost that petition, because we didn't have a majority. The reports that went to Pervez Musharraf, from his intelligence people were that the SC would decide against him, that's why he imposed Emergency.I guess in a sense you are right, that certain political issues for which the courts were not ready were brought before it, but the momentum of the events were such that if the courts did not make an attempt to address them then it would have become the old supreme court and that was not an idea worth fighting for.We also have to remember, that although from 9th March to 20th of July we were able to rally lawyers of different political persuasions on the largest common denominator, independence of the judiciary, restoration of the CJ and supremacy of the rule of law. On this no democrat could disagree but after 20th July, I would say lawyers belonging to different political parties brought their political agendas forward and over that we had no control.CJP attitude was that I have reached the position of the Chief Justice now I don't care what they do to me. He told me: "I would go down in history, as the CJ who took a stand, the title is something that comes and goes, I will remain in history."BA: Do you think had everybody moved more cautiously 3rd November onslaught on superior judiciary could have been avoided?MM: You see, this was a catch-22, if the judiciary did nothing its public image would have eroded giving an impression that this was a fight only for the CJ and not for the independence of the judiciary, not to preserve the institution. Then the judiciary would again have become weak. So the level of expectation from the masses, the legal fraternity and the civil society was such that there was no turning back without eroding your credibility, and once your credibility was eroded, they would attack again.In retrospect I think they should have not stayed the notification of the presidential elections. 50% of the battle had been won with the re-instatement of the CJ and the president's assurance in the court that he will take off the uniform before taking oath. The stay order, perhaps gave the feeling to the President's camp that the next step of the court will be declaring the elections invalid.BA: Most of the judges who refused to take oath under emergency Provisional Constitution Order (PCO) now, had taken the oath in February 2000 although a constitutional government was removed. Why does everybody support them now?MM: Well even this CJ had taken an oath under the PCO in February 2000, but I think though judges say that they are not influenced by the public opinion, the fact is that this is very far from the truth. They do not sit in ivory towers. One of my favourite lines is from NY Court of Appeal's Chief Justice Cardozo, he said that "the great tides and the currents which engulf the rest of men do not in their course turn aside and pass the judges by." 9th March no one came to meet the CJ, but when the movement started, it had a domino effect. As soon as the people started coming on the streets, one fell, then the other and the other.What we said was that, the courts say that they interpret the constitution according to the changing times; it's an organic document, not static. This is for the first time the people came to the streets and showed them that these are the changing times. There is an old dictum: "better late than never."BA: Do you see any chance of the restoration of these judges and how it would be constitutionally possible under the current situation?MM: I think the ball is now in the parliament's court. Historically, a usurper has sought parliamentary indemnity for the acts done during the period of deviation. Now we can't go before the present SC and expect restoration of judges. In fact they've already ruled that the 3rd November PCO amendments are a valid part of the constitution and they will not require any further parliamentary approval. And they have shifted the onus on parliament, that to undo it you have to repeal it by a 2/3 majority.So this war will now be in the new parliament or in the streets. On the streets it's supposed to be run by the political leadership.BA: Does that mean if political parties don't get 2/3 majority they can't change it?MM: No sir, let's take this scenario, supposing Pakistan People's Party (PPP) gets simple majority, forms the government and the speaker asks to lay the constitution of Pakistan before the house, which one will they present, one with the amendments, or the one which was before Musharraf took over ?BA: Can they do it legally?MM: Like Illahi Baksh Soomro (former speaker of the national assembly) did it, when the 2002 Parliament sat, he asked for the 1973 Constitution for administering the oath. So this is a political leadership game.BA: The government says that the SC was coming in the way of their resolve to fight terrorism. Now we all know that the problem of terrorism is there, it's an extra-ordinary situation, what can be done. The executive also needs certain powers or certain space to deal with terrorism. It is a reality, how do you fight it? And how can the judiciary really contribute to this?MM: You see the executive ought not to shift the entire onus on the judiciary. I concede the proposition that citizen rights have to be balanced against the interest of state security. Now in England, we have the same problem but their parliament enacted a law.The question is where do we draw this balance and who draws this balance? The balance is to be drawn by parliament, and then the executive will implement this law. Supposing the law is that they can keep a suspect incommunicado for 7 days. Ok, so they keep me incommunicado for 7 days but on the 8th day I should be produced before a magistrate. Decision on whether the executive has transgressed the law, is the judicial function. Now, in England, after 7/7 they have adopted legislations. We, on the other hand, haven't been able to define terrorism yet. What is terrorism? What is a terrorist act? The definition we have is that which is found in the Anti Terrorist Act as something which is liable to scare the general public. The classic definition of terrorists is state terrorism, where the state uses its coercive power to repress its citizens. Assuming that Al-Qaeda is a state within a state and it has to be dealt with, then the international community must come up with a framework of rules. Now tell me, supposing they pick you up on a charge of national security, doesn't your family have a right to know that they have you in their custody? So the degree of accounting will be less but accounting will have to be done. The state must account for persons. When they pick you up on preventive detention it is not a substantive charge but they say we have picked him up. They don't present you before a court but at least a person doesn't disappear.BA: In the post 3rd November situation, gradually the movement is dying down. How do you see the future of the movement?MM: Well, we've gone off the front pages for 2 or 3 reasons. Important events such as return of exile leadership, assassination of Ms. Bhutto and elections are getting prominent newspaper space. The problem is that we don't have many legal options; we don't have a court to turn to. Pre 20th July the struggle was within the courts and without the courts. Movement outside the courts was to put pressure and sensitize them.Now we are re-thinking our strategy. The entire leadership of the bar was arrested. Aitzaz Ahsan, Tariq Mehmood and Kurd are still under detention.BA: Now towards a personal side, when you were arrested, were you mistreated?MM: I was not mistreated at Adiala Jail; I only had the inconvenience of being shifted at 3 a.m. to Attock Jail on the third day. In Attock, the civilian jail staff bent over backwards to do anything for me, but it was the intelligence that would lead them. They would be present at every meeting, at every visitation; they decided when the cell would open and when it would be closed. They would supervise and torture me psychologically. Medical treatment facilities were inadequate; I would get medicines after 3 days. At that time I was on pain killers and the pain killers they gave me, my doctors from Pakistan Institute of Medical Sciences (PIMS) and Sindh Institution of Urology and Transplantation (SIUT) tell me, would have killed a healthy man.BA: Were you on any medication then?MM: No, just painkillers. My problem was that they'd shut me in at 4pm and open it back at 7am, the cell only had space to lie on a mattress and the bathroom was right there too. There was nothing to do, all reading and writing material, was confiscated, there was no newspaper and first four days I was in solitary confinement. I would go to the toilet to urinate every hour on the hour. I went to the jail doctor and he said have this medicine and when nothing happened after two days, he changed the medicine.Eventually my kidneys shut down, and my liver was also not functioning properly. This resulted in accumulation of fluid in my body. Fortunately, I was not disoriented mentally. I don't recall the events after the 23rd November afternoon. I can recall that an SSP came and called Islamabad saying that my health was bad and I should be transferred. I recall being in an ambulance. I don't think I would have survived Saturday. Once I recovered partially with the help of PIMS doctors in Islamabad, I was moved to SIUT in Karachi where I recovered pretty fast and now I am off dialysis.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.